3.1.2 Constitutional assemblies

Here we discuss bodies that fit this following broad description: a body designed to represent the nation, assigned—at a minimum—the task of debating in detail a draft constitution of the country, and of approving that draft. It may or may not also have the task of preparing the firstdraft, or have the final responsibility for passing it into law. We use the phrase “constitutional assembly” here because it is wider than the phrase “constituent assembly.” We include “regular” legislatures that are responsible for a new constitution or constitutional revision. If a comment applies specifically to legislatures, we make that clear. Comments that relate to “constitutional assemblies” apply to any representative body charged with making or revising a constitution.

The significance of the common phrase “constituent assembly” is that it refers to a body representing the people that is vested solely (or mainly) with “constituent power.” A Nigerian constitutional authority, B. O. Nwabueze, wrote “[Constituent power] is a power to constitute a frame of Government for a Community, and a Constitution is the means by which this is done. It is a primordial power, the ultimate mark of a people’s sovereignty” (Nwabueze 1974: 292). In some countries it is assumed that the people’s constituent power can be exercised by parliament; in some the tradition is that a separate body is required, and usually such a body does not have the power to make ordinary laws; the parliament alone retains that role. But views may change—especially because of the highly political atmosphere that often surrounds constitution-making. A Kenyan court in 2004 decided that a new constitution could be made only by a directly elected constituent assembly, or possibly a parliament elected for the purpose; failing this, a referendum was required—which was a highly questionable decision.

We can compare the main characteristics of a constitutional assembly and a parliament:

There is no single model of constitutional assembly, and it is not really possible to say that certain minimum requirements define such an assembly. Even names vary; many combinations of the words “constituent” or “constitutional” with such words as “assembly,” “convention,” “congress,” or even “conference” have been used to name (and describe) bodies whose primary responsibility is to change or make the constitution. In some languages there is no distinction between “constituent” and “constitutional.” But in languages that do have both terms, “constituent assembly” has a particular appeal because it implies that it is the people’s representatives who make and adopt the constitution. In Germany this phrase was rejected and “parliamentary council” was used—one of several measures designed to make it clear that it was not the final constitution for a united Germany that was being prepared.

Constitutional assemblies differ in size and composition and in how their members are chosen. They also vary in their roles, although they must at least discuss and adopt a constitution. Some are national bodies preparing a national constitution, while others are subnational bodies—such as the body that prepared the Bougainville constitution [2004], the Kashmir constituent assembly of [1956], and the assemblies of the individual states of the United States.

Legislatures and assemblies: The relationship

Possible relationships among special constitution-making bodies and “ordinary” legislatures are these:

There is no “regular” legislature at all, and all efforts are focused on the constitution-making process through the constitutional assembly.

The regularly elected legislature alone has the task of constitution-making or revision (and it is not elected specifically for that purpose).

The legislature is chosen by elections in which the constitution is the only or a major issue, and it has the task of making the constitution.

The legislature is also the “constituent assembly,” though it is analytically two separate bodies (e.g., as in India, Nepal, Papua New Guinea, and South Africa).

All the members of the legislature are members of the constitutional assembly but there are also other members of the constitutional assembly, and the two bodies sit separately; the regular legislature as such has no role in connection with the constitution.

All the members of the legislature are members of the constitutional assembly, but there are also other members of that assembly, and the two bodies sit separately. The regular legislature also has a role in connection with the constitution (as in Kenya [2005]).

There are two completely separate bodies, with no (or no significant) overlap in membership, and the regular legislature has no role in connection with the constitution (e.g., Bolivia and Uganda).

There are two completely separate bodies, with no (or no significant) overlap in membership, and the regular legislature does have a role in connection with the constitution.

If there is both a legislature and a constitutional assembly, each of which has a role in the constitutional process, how are these roles divided? The role of the legislature may be limited to forming the assembly and other organs of constitutional review. But the legislature may insist on having the last word (or a later word). So the constitution adopted by the assembly may have to go to the legislature for further approval (as happened in Kenya in [2005]). This is an unsatisfactory arrangement: if the assembly is inclusive, it is odd that its product should then go to the less-inclusive legislature. And if, as in Kenya, the members of parliament are also members of the assembly, they may be tempted not to engage in that body because they will have the chance to decide on the constitution later, in the legislature.

If one body operates as both legislature and constitutional assembly, how is the difference marked, if at all? In Ceylon (now Sri Lanka) the constituent assembly sat without a mace, the symbol of royal (governmental) authority. The two bodies could sit in separate places, but this would create logistical problems if both needed to sit on the same day. A different person might preside. The session for each might be marked by its own formalities—separate prayers, for example. The rules of procedure might be slightly different—but it would be hard to make them significantly different for similar types of activity. There is a good reason for having more demanding quorum rules for the constitution-making body.

In Nepal [ongoing process] the interim constitution provided for a committee of the constituent assembly to carry out the legislative work. The motive was to prevent the work of the constituent assembly being held up because the parliament needed to meet. However, this was never brought into effect. It seems there was an unwillingness to leave the parliamentary work to a committee. There were twenty-five parties in the assembly and all would want to be in the parliament, yet some had only one member.

Box 36. The nondeliberative constitution-making role of parliament

Parliament may have—or give itself—functions in relation to the constitution-making process other than debating the contents of the constitution. It may well have passed the laws setting up the process. It may have a role in appointing members of a constitutional commission. It may have to vote the necessary resources for the process. It may insist on overseeing the process, even if it cannot control it. In Kenya from 2000 to 2004 and again from 2008 to 2010 the legislature established a select committee that carried out these roles. The committee was important if amendments to the governing legislation had to be passed. Its makeup reflected the party composition of the parliament. In 2008–2010 the committee was also given specific roles by law (including decision-making roles about the content). The Somali process that began in 2009 emulated this model, but the role of its parliamentary committee was unclear.

Arguments for and against separating the legislature and the constitutional assembly

A constituent assembly may be seen as representing the people’s sovereignty. It may also be seen as a way precisely of ending legal continuity, marking a break with an autocratic past, or having a genuinely “home-grown,” or autochthonous, constitution rather than one that owes its legitimacy to its colonial history (as in Papua New Guinea [1975]). It has been argued that it is better to have a constituent assembly, which is somewhat different from the ordinary legislature, make the constitution, precisely because it is not the ordinary lawmaking body and does not have the same vested interest in the document that is to be drawn up; it should not “act as judge in its own cause.” This benefit will disappear if the constituent assembly turns itself into the legislature under the new constitution (as in Timor-Leste [2002], for example). When there is significant distrust of politicians and parties, a separate constitutional body may have greater popular support (for which reason politicians may not be prepared to go along with such an arrangement).

Box 37. South Africa: One body, two roles

Under the interim constitution, elections were held for a parliament that was also the main constitution-making body. That election was an important milestone; it was the first time most people had voted. It would have been impossible to produce a separate, more legitimate body to deal with the constitution.

This had other advantages. All the newly elected MPs could be involved in constitution- making. Only one secretariat was involved, and only one building needed. It has been observed that although the African National Congress was the dominant party, “the executive did not control the process, as it might have in an ordinary parliament.”

What are the arguments against separating the legislature from the constitutional assembly? Time and expense are clearly relevant; almost certainly a special assembly will take longer than some sort of expert commission process, and probably even than a regular legislative review (although these can also be slow). It will almost certainly be more expensive than if it is parliament that has the role.

From the perspective of interested groups, one disadvantage of a special assembly is likely to be its unpredictability. People who commit themselves to a constitution-making process would like to be able to predict the outcome, in the sense of the constitution they will produce. The more “popular” the composition of an assembly, the less predictable it is likely to be. Designers of the assembly may try to make it more predictable—by bringing in members through political parties, by limiting the voting possibilities of members, and through the internal structures and rules of the constituent assembly. Results of such efforts cannot be guaranteed. Even party discipline may collapse; in the Kenyan National Constitutional Conference it proved impossible for parties to control their members, as ethnic considerations dominated.

Various constituent assemblies have exceeded their mandates. Jon Elster has written:

[T]he [U.S.] framers ignored the instructions from the Continental Congress on three crucial points when they decided to write an entirely new constitution, to seek ratification by state conventions rather than state legislatures, and to require ratification by nine states rather than by unanimity. In France, the constituent assembly decided to ignore the instructions of their constituencies with regard to both the voting procedures and the King’s veto. In Germany, finally, the constituent assembly successfully insisted on ratification by the state legislatures rather than by popular referendum. The German framers also managed to resist some, although not all, of the decentralizing instructions that the Allies had given them (Elster 1995: 375).

Bodies in some processes have been hybrids: legislators are members of the constitutional assembly, but there are many other members. This may seem to be a reasonable compromise, but has its own problems. If the parliamentarians are many, it may be impossible for both bodies to sit at the same time, which may seriously hold up the constitution-making process. They may also have influence greater than their numbers would suggest, raising risks of use of such influence for their own benefit.

Legal status of assemblies

In revolutionary or transitional times, the “legality” of assemblies convened according to the rules set forth in a previous constitution may be doubtful. American commentators have argued

about whether the actions of the constitutional convention were “illegal” and therefore reflected the founding of a new legal order. The French constituent assembly came into existence to raise revenue for the French king. But as the existing system fell apart, it transformed itself into a constitution-making body. Even in this, revolutionary, case, the body itself was convened by the existing authority. In some situations of constitutional crisis, or even vacuum, constitutional assemblies have been brought into being by actions of outside forces, whether in the form of occupying powers, such as the victorious countries occupying (West) Germany after World War II, or the United Nations in Cambodia [1993], or the United States in Iraq [2005]. In Vanuatu [1980], members of the various local parties formed their own constituent assembly, without any formal legal framework, and proceeded to make a constitution. It was accepted by the colonial powers (France and Britain) and became law.

The South Africans, as mentioned earlier, wanted to preserve legal continuity. So the 1993 interim constitution and the final constitution were made by and according to the procedures of the parliaments of the time.

Other assemblies have come into existence in more “normal” times, and have been formed by existing authorities for the specific purpose of making a constitution. Those authorities might be the ordinary legislative process (as in Kenya in the later 1990s) or military authorities (as in Nigeria in 1977 and 1988). In those circumstances it is perhaps easier to design a process and a structure for the assembly. But it is probably rare that a constituent assembly is formed without great pressures from contending forces, even if those forces are not at war. In fact, in less- fraught constitution-making circumstances, perhaps a special constitutional assembly is a less common way to make a constitution. Among the constitutions made or amended in recent times in noncrisis circumstances are those of Finland, Sweden, and Switzerland, where changes were made by the ordinary parliament. This may also reflect national traditions—though Switzerland’s individual cantons do sometimes use constituent assemblies to make their cantonal constitutions.

For the purposes of this handbook, we assume that the important consideration for constitutional process designers will be whether the constitution is acceptable to the nation, something that is likely to depend more on its content and the process of making it than on legalistic arguments about its foundations.

Design

This book is written for those who do have a chance to plan, and there are some lessons that can be learned from the past. At the least, it may be useful to have a checklist of aspects of assembly design. Some main objectives of rational constitutional assembly design are:

legitimacy in the eyes of the public;

a body that acts on the basis of its perceptions of public interest and not of self-interest (of its individual members, of itself as an institution, of the parties or groups from which the members come or that they represent); and

a body that has the necessary competence (including having access to necessary technical assistance).

A purist view would be that a true “constituent assembly,” as the embodiment of the sovereignty of the people, ought to have the entire constitution-making power, subject possibly to the requirement of a referendum. In reality many assemblies have done far less. Past assemblies, on a continuum from widest to narrowest range of functions, include those in table 8.

There is no “right” set of tasks for an assembly. But there are a few considerations that may be helpful in planning those tasks.

On “civic education” (see part 2.2.2), the constitutional assembly may itself need to be educated about its task, and may be poorly equipped to educate the public. And the sort of human, logistical, and other support that the constitutional assembly will have available may not be adequate for the task. However, in South Africa the assembly did take on this role effectively by having its administration hire and train a team of civic educators.

Whether a separate commission or other body should prepare a draft is much debated. One can argue that the people’s sovereignty would be better expressed if the constitutional assembly were to carry out both these operations, because the document prepared in the first stage will almost inevitably impose some restraints on the contents of the final document. If a first draft, prepared by another body, takes account of public opinion, and the document is then revised by a constitutional assembly, it will be, in theory, the outcome of two quite different processes of ascertaining public sentiments (and, if it then goes to a referendum, of yet a third). If the first draft is prepared before the constitutional assembly sits, then one would have to ask when the “political bargaining” would take place: with the drafting commission, or left until the constitutional assembly, in which case is it public or behind the scenes?

Table 8: Functions of constitutional assemblies

Countries

Functions

Afghanistan [2004]

Approving with little discussion a draft that then requires further act of adoption

Cambodia [1993]; Timor-Leste [2002]

Carrying out or supervising the whole process designed by others from draft through promulgation

Nigeria [1979, 1999]; Kenya [2005]

Thorough debate on the existing draft, with freedom to change it; further act of adoption by another body

Uganda [1995]

Thorough debate of existing draft, but needing supermajority to amend draft; final act of adoption by another body

United States [1787]; India [1950]; Bolivia [2009]

Preparation of draft; then full debate; further act of adoption or promulgation required

Vanuatu [1980]; Namibia [1990]; Nepal [ongoing process]

Designing the whole process (other than formation of the constituent assembly, and the adoption process) and carrying it out from public consultation (if any) to draft to promulgation

If there is no other body, the assembly may have to be charged with responsibility for public consultation and provided with the necessary staff members. However, this may be a task that an assembly is not well equipped to carry out—the task requires special expertise, including perhaps computer programmers and data entry personnel. (See part 2.3.4 on the personnel needs of a process.) And, especially if the assembly is also the parliament, or parliamentarians are also members, it may be undesirable for them to conduct public consultation meetings: some of the issues the public wants to raise may be concerned with the competence and commitment of legislators generally, or even the particular members at the meetings, and the public would naturally feel hesitant to speak freely.

Size

Constitutional assemblies have a tendency to be large, often too large, though they have varied widely. (See table 9.) If dissatisfaction with parliament is one reason for having a constituent assembly, it will often be felt that representing the whole people requires a larger body. If, as in Kenya, parliamentarians are members of the assembly, the latter must be larger, and there it was decided that others should outnumber members of parliament. Realistically, if a section of society has one member it may feel some sense of satisfaction, but is unlikely to be able to influence decision-making at least by its voting force (except perhaps if a two-thirds vote is on a knife-edge, or if unanimity is required at some point). But there is another role than that of voting: articulating the issues of the various sectors of society.

Large bodies are hard to control. Decision-making is difficult, even in committees because they will also be big, unless they are numerous (in which case providing secretarial and other assistance and keeping track of what the committees are doing will be hard). With large bodies, there is more risk that members will make rhetorical speeches rather than contributions of substance.

Size will be less of a problem if the function of the constituent assembly is mainly to endorse a document prepared elsewhere (such as Afghanistan’s Constitutional Loya Jirga); the body will not really have to understand the document in great detail. Most constitutional assemblies are expected to discuss the issues in detail, and even those that are not expected to may insist on doing so.

Membership

A dilemma in constructing any constitution-making body is how to balance the wishes of the people with those of the political classes, especially of political parties. After or during periods of conflict parties may not really represent the people, and the role and control of parties may be an issue in constitution-making. Political parties have interests as parties, and politicians as politicians.

On the other hand, there is a risk that a constitution that is adopted without being accepted by politicians, and even by the organized parties, will not work. A good working relationship between the politicians and the people is essential, and the final document will probably be a product of compromises between these two groups, as well as among other groups in society.

If the legislature is the constitution-making body, it will be composed according to the usual procedures (though if it is elected with a view to constitution-making, the election results may be slightly different than those in regular elections). If the constitution-making assembly is quite separate from parliament, it may seem pointless to use the normal election method, and permit the parties to campaign in the usual way—the composition of the assembly will probably largely mirror that of parliament. However, different people might be interested in standing for elections.

The composition of various constitutional assemblies is shown in table 9.

This shows that some assemblies have been designed to represent the people, sometimes to the exclusion of traditional politicians (who may be otherwise occupied with the regular legislative business, in a separate body). The categories of “people” include, and indeed often emphasize, those marginalized in the past; their demands may be the very basis of the assembly process, as in Bolivia and Nepal. One problem with such a basis is that new groups tend to emerge, demanding their place in the assembly. This was true in Nepal, where the interim constitution had to be amended to make the membership more comprehensive, and the selection process correspondingly became more complex.

Election and selection of members

Assembly members (other than regular legislators) may be chosen by:

direct election by the people;

indirect election by existing political bodies such as local government councils;

election or selection by bodies, not necessarily normally politically active, that would not usually choose representatives to a legislature (such as civil society or parties—other than in a party-list system—or even an individual such as a king); or

omination by the chair of the assembly, or some other person or body, for reasons connected with the makeup of the body and its expertise or to repair shortcomings in its representativeness.

The arguments for and against direct election include the following:

For:

it is democratic;

it can lead to fair representation; and

it is likely to be acceptable to people.

Against:

it is expensive and time-consuming;

if the electoral system is faulty (this may be one of the issues to be decided when debating the new constitution), the assembly may not be representative and may have an interest in preserving the faulty system;

it may be dominated by political parties;

people of competence and integrity may be reluctant to stand for election (or parties may not accept them); and

elected members may feel compelled to stick to their mandate and be less prepared to compromise.

Many assemblies are made up by a combination of methods.

Table 9: Composition of constitutional assemblies

Country and body

Composition

Population of country

Assembly size

Women

Bolivia [2009] Constituent Assembly

Directly elected

9 million

255

35%

Bougainville [2004] Constituent Assembly

Members of two existing governmental bodies, 36 in the Interim Bougainville Provincial Government and about 100 in the Bougainville People’s Congress

185,000

136

8

Ecuador [1998] Constituent Assembly

Directly elected members

12 million

90

28.5%

Ecuador [2008] Constituent Assembly

Mixed system of some members representing provinces (100) and some citizens overseas (6) and also party lists (24)

13.7 million

130

34%

Eritrea [1997] Constituent Assembly

105 members of the legislature; the rest elected by regional assemblies or selected from representatives of Eritreans abroad

3.2 million

527

30% quota

France [1789] Constituent Assembly

291 deputies of the clergy, 270 of the nobility, and 584 of the Third Estate

28 million

1,145

0

Germany [1949] Parliamentary Council

Indirectly elected (state legislatures elected some of their members)

50 million

65

About 4

India [1950] Constituent Assembly

Mainly elected by provincial legislatures

345 million

About 300

About 15

Kenya [2005] National Constitutional Conference

All members of parliament (222): 3 elected by each district council; (no more than one councillor, at least one woman); 126 chosen by civil society; 1 member from each registered party; 13 nominated by chair to represent other aspects of society; constitutional commission members (29)

240 members elected by first-past-the-post, single-member geographical constituencies (2 of those elected were nonparty candidates); 335 elected on party-list system; 26 nominated through party-based consensus

26 million

601

197

United States [1787] Constitutional Convention

Elected or selected by individual states

4 million

55

0

Box 38. Members’ active participation

The Kenyan constitutional commission looked at the contributions of different types of members to plenary debate. In quantitative terms they found that members of parliament made a somewhat smaller contribution than their numbers would suggest, while members of the commission that prepared the constitution draft that formed the basis of discussion contributed significantly more. Only 61 percent of the members of parliament spoke at all, while 91 percent of NGO representatives did, as did 89 percent of representatives of religious organizations. Only 46 percent of those appointed to represent “special interests” did so. These figures probably reflect the lack of belief on the part of many members of parliament that the process would lead anywhere, and the much greater commitment of civil society and district representatives. It was probably a mistake to include members of the drafting commission in the constituent assembly—they did not have a vote, but some had considerable influence over thematic committees.

It has been argued that, whatever the usual electoral system, broad representation of the people in the constitutional assembly would be best achieved by a list system of proportional representation, with a low threshold, to ensure that even small parties are present. In some countries a national proportional representation list system has been adopted (in South Africa, for example), or a list system but using smaller constituencies (as in Namibia). The system adopted for the Nepal constituent assembly was a mixture of single-member geographical constituencies (240 members) and party lists (335 members). It did not rely on the natural tendency of proportional-representation systems to be more inclusive (because people did not trust the political parties to be inclusive in their selection of candidates) but imposed rigid requirements in terms of gender, caste, and ethnicity for the lists and the seats. In Bolivia a party could not necessarily hold all three seats from a district even if it won sufficient votes to do so: if there was another party with at least 5 percent of the votes in the district, it would take the third seat. This was designed to protect small parties. But proportional representation systems do give a great deal of power to political parties.

However, some assemblies have included members drawn from lists not put together by parties. For example, half the lists for the election to the Geneva constituent assembly established in 2008 were party lists, with the other half being lists of people with particular interests (such as homeowners, women, and retired people), including one list put together by a federation of 480 local organizations of all sorts). It is common for a proportional representation list system to provide that a party will only have any members elected as members of parliament if it achieves a certain threshold percentage of the votes cast—at least 1, 3, or even 7 percent. The aim here is to prevent fringe, even extremist, parties from winning seats. But the threshold might be lower for a constituent assembly precisely in order to encourage inclusion of a full range of national interests.

Entitlement to vote in an assembly may be wider than for parliamentary elections. In Eritrea some members of the assembly were elected by Eritreans abroad (though in some other countries, claims by the diaspora of the right to vote have been rejected). Afghans in refugee camps in other countries were also to vote for the Constitutional Loya Jirga. In the case of a country emerging from serious conflict there may be many exiles, but tensions can exist between exiles and those who remained. In Kenya a court held that prisoners could vote in a referendum; they were debarred from voting for parliament. A similar possibility might exist for voting for a constitutional assembly—depending on the words of the existing constitution; if there were no constitution, an expansive view of the right to vote might be possible.

Some other selection process by civil society has been used in a number of constituent assemblies, including Afghanistan [2004] and Kenya [2005]. There are risks in such a system, including those of undue influence or even bribery in “small-circle elections” resulting in new sorts of distorted representation. But if the alternative is that elections are exclusively dominated by unreformed parties, this may be a risk worth running, and in a system where civil society is genuinely responsive to society those risks may not be realized.

Nomination of a small number of members could be designed to bring in representatives of groups and sections of society that are underrepresented or individuals whose experience will add weight to the deliberations or legitimacy to the body. Such a nomination could be made by the chair of the body (as in Kenya, where the chair used the power to appoint some persons from the business sector, including media). But in some instances the chair is not identified in advance. It could be by agreement among parties, as in Nepal, but there the parties to some extent undermined the understood purpose (to bring in expertise without regard to party affiliation) by sharing out the slots among the major parties and not necessarily using them to bring in experts.

Relatively few countries make voting a legal duty. It has been suggested that, even in a country with a practice of compulsion, this should not apply to elections for a constituent assembly. But in New Jersey in 1966 only about 3 percent of the voters voted for the constituent assembly members, which rather makes nonsense of the idea of people’s participation.

Campaign

If public funding is usually available for election campaigns, arguably it should also be available for campaigns for election to the constituent assembly. But there may be many nonparty candidates in such an election. It has been suggested that there should be a publicly financed information sheet to educate the public about all candidates. A few countries have banned separate party rallies and campaigning, providing only for joint, publicly financed election meetings (e.g., Tanzania in the one-party state period). That plan might be worth considering for elections to constitutional assemblies.

Federations or federating countries

Indirect elections (usually by a lower-level legislature) are common in federating countries, as in the United States at the time of the constitutional convention, and to some extent in India in 1946. The shortcomings of this approach are that:

it may make the assembly a process of bargaining among units and not a process of the people; and

it may mean that the assembly mirrors distortions in the makeup of the federal state—the very distortions that may be involved in the disputes underlying the demand for a new constitution.

Should representation of units be based on equality or population? The former favors smaller units. Issues of representation should be looked at in the light of voting arrangements, among other things: what number of votes is needed to carry a motion and what number is needed to block one?

Qualifications of members

One might argue that to make the assembly as representative as possible there should be no requirement other than being a citizen, and perhaps a registered voter. Some countries might consider allowing members of the national diaspora to be members of the assembly, even if they are not citizens. They may have left the country against their own wishes, under oppression or conditions of insecurity, and may not have given up aspirations to return to it.

Qualifications imposed in actual cases have included Nigeria’s requirement in 1977 that members be “indigenes” of the state they represented (meaning that their tribe is one that “belongs” in the state). Nigeria excluded traditional paramount rulers in 1988. Both Nigeria and Nepal (2007) excluded current public servants, and Nepal precluded payment to anyone from government funds. Nigeria in 1977 and 1988 required that a person have paid taxes for the previous three years (which might discriminate against women); while Nepal excluded anyone owing the government money. Nepal’s concern to exclude the corrupt led it to bar anyone convicted of crime involving “moral turpitude” or corruption, or of any electoral offense in the previous two years. It went to the extent of barring those blacklisted (under law) as defaulters to banks. And Nepal also barred those under twenty-five years old—thus excluding the voice of youth.

Having a large number of candidates can be confusing for voters. Requirements to show a certain level of support may reduce those numbers. In Nigeria in 1977 the number required was

ten. In Nepal in 2007 only a proposer and seconder were required. Another device for discouraging frivolous candidature is to require a financial deposit. In Nepal an individual standing for a geographical constituency had to put up a deposit of 3,000 rupees (about $45 in United States dollars) and a party putting forward a list for the proportional representation election 20,000 rupees (about $300).

Experts as members?

Elster has suggested that experts should not be members because the constitution should be the outcome of bargaining between the representatives of the people, rather than an expert affair: “Lawyers will tend to resist the technically flawed and deliberately ambiguous formulations that may be necessary to achieve consensus” (Elster 1995: 395). But experts have the same right as any other citizens to stand for election, and this exclusion may produce a distortion of expertise. Some countries have provided for specific seats for persons with certain expertise, while in many others some members will have expertise, with lawyers often being prominent. In India political parties sought to ensure that some leading experts were included in the constituent assembly.

Nonmembers with special relationships

In Kenya [2005], certain observers were permitted to attend, and to interact with members informally during breaks. These were drawn from civil society, and were selected by a committee (from thousands who applied). One principle was to allow groups that had important potential input, but were not formally included in the assembly, to be present. The observers could attend plenary sessions (as could other members of the public) and were assigned to relevant committees (unlike members of the public), but could not speak or vote in either. Twenty-eight organizations were also accredited, which meant they could lobby members, distribute literature, and hold meetings on the grounds of the constituent assembly.

In other contexts, government observers have also been included—perhaps unwisely. In Afghanistan [2004], constitutional commission members who prepared the draft were included as observers along with the transitional cabinet and the heads of the judicial and human rights commissions. They did not have the right to vote or express an opinion unless they were asked a question by one of the members of the Constitutional Loya Jirga.

Payment of members

If constitutional assembly members already hold paid public positions, perhaps as legislators, there is little reason to pay them more for their constituent assembly roles. But in some countries legislators are adept at claiming allowances for everything they do. People who otherwise would not be paid, or not paid much, would have a legitimate claim to be paid for this public service. Ideally, salaries should not be fixed by the members of the constituent assembly themselves. This could lead to abuse, discrediting the assembly.

Structure of the assembly

It seems unnecessary to have a second chamber for a purely constitution-making assembly. It is meant to represent the entire people, and it does so in one chamber. Conflicts with any other body should be avoided. The one purpose that a second chamber could serve would be to prevent a body that is otherwise not subject to any realistic constraints from straying beyond its mandate. To be able to do this, the second chamber would have to have great public legitimacy—which might falter under the strain of disagreement.

Committees

It is common for much of the work to be carried out in committees. In addition to committees to discuss substantive issues, there will probably be some addressing administrative matters. Some may resemble the committees often found in legislatures (on the discipline of members, for example). Others may be needed because the assembly is a new body without an existing structure. For example, there may be a committee concerned with the welfare of members, their housing, transportation, and so on. And the special nature of the work of the assembly may necessitate special committees such as those on civic education, the collection of views, and the education of members. Committees have included:

• a capacity-building and resources-management committee and a committee for public opinion collection and coordination in the Nepal process; and

• a staff and finance committee, a credentials (members’) committee, a house committee (concerned with housing, library, and other facilities), a press gallery committee, a steering committee, and an order of business committee (to plan the future course of the constituent assembly) in the Indian assembly.

How should topics be assigned to committees? Sometimes the structure of the existing constitution may be used as the model. This has the disadvantage that the structure of that constitution may be dictated by that of the old, because of the committee structure. Sometimes the committee structure closely reflects national concerns, as it did in the Bolivian constituent assembly, which included committees on “education and interculturality,” “hydrocarbons, minerals, and metallurgy,” “water resources and energy,” “integrated Amazon development,” and “coca.”

Committees should be no larger than about thirty members if the benefits of having a smaller body are to be realized.

Though it is useful to have expertise in committees, it is not practical to give members a free hand to choose their own committees—committees will become uneven in size. Also, it is often important to have nonexperts on committees as well as experts; the whole idea of a constitutional assembly is to have the people’s voice, rather than only experts, involved).

The membership of committees should be balanced in gender, ethnic, and other terms, if possible.

If parliament is in charge of the process, the committee structure may be different. Parliament has many other functions to perform, and other committees will exist. Parliament may therefore decide not to assign all its members to the constitution-making process, but to set up one committee with that responsibility. That committee may operate essentially like a constitutional commission.

In Zimbabwe [ongoing process], a parliamentary select committee had an oversight role in the constitution-making process. It appointed seventeen “thematic committees” with 30 percent legislators and the remaining members drawn from “stakeholders” outside parliament.

Place

It may seem natural for the assembly to have its main seat in the national capital for symbolic reasons, and because that is likely to be the most accessible town. There may be good reasons for having it sit elsewhere:

to be away from the seat of the national legislature;

to symbolize the break with the past;

to avoid a place still affected by turbulence; or

to avoid the constituent assembly being subjected to undue pressure from the people and organizations of the already powerful capital city.

Similar factors may suggest not using other cities. In Bolivia the constituent assembly sat in Sucre, an old colonial capital, but not the current national capital where the parliament sits. But to some extent the constituent assembly became hostage to the demands of the Sucre people about the city’s constitutional status.

It may also be necessary to strike a balance between protecting the security of the members and ensuring that the security forces are not in a position to overawe them.

Even if the assembly sits in the same town as the legislature, it would be best for it not to sit in the same venue. But it may not be easy to find a place large enough for the assembly, which must have not only a hall for plenary sessions, but many rooms for committees, for support staff and facilities, and (if public access is to be permitted) for public facilities. The Kenyan body sat in a large hall designed for dance performances before tourists (chosen in preference to a city-center conference hall to minimize the risk of delegates slipping away to their offices or to shop). It was not easy to see or hear delegates in the spectator seats; a shortage of rooms was to some extent solved by the use of tents, but this meant that secrecy of deliberations was impossible. In Nepal the use of a conference center meant that the chair was on a stage, and the stage was the only part of the hall visible from the public gallery. In Afghanistan, a large tent was erected.

Support and facilities

The constituent assembly will need:

an administrative management body—which will probably require staff members with a wider range of skills than a normal legislative secretariat (see part 3.3 on establishing this body);

logistical arrangements for members (possibly including housing);

printing facilities of its own, or access to good facilities elsewhere;

communications (radio, computers, TV studio, and the like);

vehicles or access to vehicles if it is to travel; and

security arrangements. (For a more in-depth consideration of what is needed, see part 2.3.)

Duration

Predicting how long it will take a constituent assembly to complete its work may sometimes be hard—especially if the assembly has the entire constitution-making role. If it is set up to debate a full existing draft, a clear timetable may be possible—especially by limiting the life of the constituent assembly in order to limit its role.

Time limits prevent groups with more patience (but not necessarily more concern for the national interest, whose interest may be in financial gain) from obtaining advantage. On the other hand, an assembly composed partly of people unused to deliberative work of this type may take some time to understand and feel comfortable with its role. If the process is too rushed, more experienced members (probably seasoned politicians) may have the upper hand.

What happens to an assembly once it has finished its task?

It is important that the law (if any) should be clear about what happens when the assembly finishes its task. The interim constitution of Nepal is a little unclear: “The term of the constituent assembly is to be two years from the first sitting” but “on the day of the commencement of the Constitution promulgated by the constituent assembly” its task is to come to an end.

Turning the constitutional assembly into the first legislature under the new constitution may not be desirable. The assembly may be quite different in its makeup from a regular legislature,

as we have seen. But it is not easy to prevent this by existing law if the assembly is perceived as having full constituent power—in other words, it creates the new legality, which overrides existing law.

Conclusion

The context, as well as national tradition, may often define the choices listed above. Designers of the process need to follow models of other countries with care, and to learn from their own country’s past efforts and experiences.